IP case law Court of Justice

Judgment of 18 May 1989, C-266/87 (RPSGB)



Judgment of the Court of 18 May 1989. - The Queen v Royal Pharmaceutical Society of Great Britain, ex parte Association of Pharmaceutical Importers and others. - References for a preliminary ruling: Court of Appeal - United Kingdom. - Pharmaceutical products - Parallel imports - Measures having equivalent effect - Protection of public health - Trade-mark law. - Joined cases 266 and 267/87.

European Court reports 1989 Page 01295


Summary
Parties
Grounds
Decision on costs
Operative part

Keywords

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1 . Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Concept - Measures adopted by a professional body for pharmacy

( EEC Treaty, Art . 30 )

2 . Free movement of goods - Derogations - Protection of public health - Rules prohibiting pharmacists from substituting a therapeutically equivalent medicinal product for that prescribed by the doctor - Whether acceptable

( EEC Treaty, Art . 36 )

Summary

1 . Measures adopted by a professional body for pharmacy, in whose register all pharmacists must be enrolled in order to carry on their business, which lays down rules of ethics applicable to the members of the profession and which has a committee upon which national legislation has conferred disciplinary powers that could involve the removal from the said register, may, if they are capabe of affecting trade between the Member States, constitute "measures" within the meaning of Article 30 of the EEC Treaty .

2 . A national rule of a Member State requiring a pharmacist, in response to a prescription calling for a medicinal product by its trade mark or proprietary name, to dispense only a product bearing that trade mark or proprietary name may be justified under Artice 36 of the Treaty on grounds of the protection of public health even where the effect of such a rule is to prevent the pharmacist from dispensing a therapeutically equivalent product licensed by the competent national authorities pursuant to rules adopted in conformity with Community law and manufactured by the same company or group of companies or by a licensee of that company but bearing a trade mark or proprietary name applied to it in another Member State which differs from the trade mark or proprietary name appearing in the prescription .

Such a provision does not go beyond what is necessary to achieve the objective in view, which is to leave the entire responsibility for the treatment of the patient in the hands of the doctor treating him, who may often prescribe a given medicinal product for psychosomatic reasons .

Parties

In Case 266/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the Court of Appeal of England and Wales for a preliminary ruling in the proceedings pending before that court between

The Queen

and

Royal Pharmaceutical Society of Great Britain, ex parte Association of Pharmaceutical Importers and Others

on the interpretation of Articles 30 and 36 of the EEC Treaty,

and

in Case 267/87

REFERENCE to the Court under Article 177 of the EEC Treaty by the Court of Appeal of England and Wales for a preliminary ruling in the proceedings pending before that court between

The Queen

and

Secretary of State for Social Services, ex parte Association of Pharmaceutical Importers and Others

on the interpretation of Articles 30 and 36 of the EEC Treaty,

THE COURT,

composed of O . Due, President, R . Joliet, T . F . O' Higgins and F . Gr


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